New Nonimpairment Policy Projected for the National Park System

William J. Lockhart

The author is a Professor of Law at the University of Utah.

From the enactment of the National Park Service Organic Act (the Organic Act or the Act) in 1916 until a 1998 decision by a federal district court in Utah, the National Park Service (NPS) had managed national parks without resolving theseeming contradiction between the Act's directive to conserve park resources "unimpaired" and its simultaneous directive to provide for visitors' "enjoyment" of those resources. Uncertainty, confusion, and disputes about the inevitably conflicting implications of these mandates were virtually guaranteed by the text of the Act, which requires the NPS to—

promote and regulate the use of [national parks] by such means and measures as conform to the fundamental purpose of the said parks, . . . which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.¹

Congress' continuing commitment to the preservation goals of the Act was reiterated, and arguably heightened, in the 1978 "Redwoods Amendments" to the Organic Act. These amendments added the requirement that "the protection, management, and administration" of the parks "shall not be exercised in derogation of the values and purposes for which these various areas have been established . . . ."²

Despite texts that suggest rigorous standards, application of the protective legal policies of the amended Organic Act has been murky and ineffective. The NPS and the U.S. Department of the Interior (DOI) have taken few effective legal initiatives to clarify the scope, application, or enforceability of the Act's central "no-impairment/no-derogation" mandate, despite intensifying threats to long-term preservation of the natural, historic, and cultural sites they administer.³ Yet there are substantial grounds for claiming a broad domain for the Act. The rigorous protection suggested by its text is well supported by the legislative history of the Redwoods Amendments, which confirms Congress' intent to impose a legally controlling protective standard. Congress was explicit that rigorous and enforceable protection was intended by the 1978 amendments, explaining that they were enacted "to refocus and insure that the basis for decision-making concerning the [National Park] System continues to be the criteria provided by 16 USC § 1."⁴ Moreover, Congress anticipated invocation of legal remedies under the Act, explaining that it was to provide the "basis for any judicial resolution of conflicts" arising from adjacent private or public activities.⁵

Ineffectual use of the authority conferred by the Organic Act may have more to do with politics than with law.⁶ But lack of political support can heighten administrators' natural reluctance to assert authority in the face of legal doubts; and doubts about the Act are reflected in continuing uncertainty about both the jurisdictional reach and the specific meaning of its mandate to conserve park resources "unimpaired."

Two basic contexts define the arena within which the NPS, and ultimately the courts, must resolve the fundamental interpretive questions about standards for applying the mandate to conserve park resources "unimpaired." First, with regard to activities or development within the parks: to what extent does the impairment prohibition constrain park managers in deciding whether to authorize facilities, services, and activities within the parks in order to "provide for" visitors' "enjoyment" of park resources? Second, with regard to external activities: to what extent does the no-impairment standard constrain actions outside the parks that may have impairing impacts within the parks? In both contexts, the substantive limits imposed by the impairment prohibition have become increasingly critical as recreational and other demands on our parks have intensified, and as resource development and land use outside park boundaries have had increasing impacts within the parks.

Lacking any statutory definition of "impairment," the application of the prohibition in both contexts depends heavily on NPS' own interpretation of that standard. The prevailing NPS interpretation will largely determine the level of protection accorded to the resources and values protected in our parks,⁷ and hence the extent of facility development and the range and intensity of recreational activity permitted within the national parks in response to the increasing demands placed upon them. Similarly, because the no-impairment provision suggests no textual basis for distinguishing between impairments caused by in-park and external activities, the standards ultimately applied in regulating park impacts from external sources will surely be heavily influenced by the standards applied to internal activities.

[30 ELR 10705]

It must be acknowledged that, whatever the standards governing "impairment," unresolved issues about the reach of the Act are raised in considering the application of those standards to the adverse effects on parks from activities outside their borders. Significant, if limited, case law supports that external reach, and there are substantial grounds for so understanding the Act.⁸ Moreover, a recent disposition of one such issue in an opinion by the Solicitor of the Interior lends substantial further support⁹; but no detailed judicial analysis has yet effectively addressed the difficult issues that would be raised by transboundary application of the Act, including concerns about the reach of the competing authorities under which those external activities are conducted, or the related legal judgments about the relative jurisdiction of the NPS and other agencies.¹⁰

This Article, however, focuses primarily on the substantive content of that "impairment" standard and its development and application by the NPS' to its own management activities within the parks, in the belief that the content of the no-impairment standard in all contexts will in the first instance be determined by its application to the NPS' own management activities, heavily influenced by the agency's own interpretation. Despite the centrality of the basic no-impairment mandate, however, until the events prompting this Article, the NPS had developed no definitions and little detailed guidance to clarify the content or appropriate rigor of the protection conferred by that mandate. Nor had the NPS developed significant guidance to mediate between the prohibitions of that mandate and whatever latitude for management judgment may be implicit in the Organic Act's accompanying directive to provide for visitor's enjoyment of park resources.

Important clarification of the no-impairment provision is at last in the offing as a result of policy initiatives undertaken by the NPS in response to a decision of a U.S. District Court in Utah, in Southern Utah Wilderness Alliance v. Dabney,¹¹ now on appeal. A new interpretation of that provision was first developed in the NPS' briefing to the Tenth Circuit Court of Appeals, which sought to encourage that court to recast the district court's interpretation. That interpretive effort has now evolved into detailed guidance to be included in a planned revision of the NPS' cornerstone policy document, its Management Policies manual,¹² likely to be promulgated in fall 2000.¹³ Moreover, the NPS has demonstrated its serious commitment to refining the no-impairment policy by its parallel development of dramatically revised policies to govern in-park motorized recreation, reflected in the recent rulemaking proposal to cut back severely on the use of jet skis (personal watercraft) in all but a handful of parks and a DOI decision to enforce existing NPS regulations limiting use of snowmobiles.¹⁴

This Article provides background and analysis to aid consideration of the evolving NPS no-impairment policies, and suggests an approach supportive of a highly protective interpretation of that Organic Act standard.

The Textual Rigor of the No-Impairment Standard and the Uncertain Limits of the Subordinate Mandate to Provide for Visitors' Enjoyment of the Parks

Textually, it is hard to dispute that the Organic Act's directive to leave parks "unimpaired" sets a rigorous standard to be met in the NPS' fulfillment of its primary duty "to conserve the scenery and the natural and historic objects and the wildlife" of the parks. That no-impairment standard is clearly framed as the controlling requirement of the Act, despite the further and potentially conflicting directive to "provide for the enjoyment." The text clearly makes the "enjoyment" directive subsidiary: it is expressly subordinated to the no-impairment prohibition by the Act's directive to provide for enjoyment only "in such manner and by such means as will leave them [the park resources] unimpaired for the enjoyment of future generations."

The unqualified prohibition against impairment strongly suggests an uncompromising standard that would bar all but [30 ELR 10706] de minimis adverse impacts, an interpretation that is well supported by dictionary definitions. Webster's says that to impair is "to make worse: diminish in quantity, value, excellence or strength."¹⁵ Not only does that definition apply without regard for the degree, extent, or significance of any "worsening" or "diminution," but illustrations accompanying the definition also make clear that the term properly includes qualitative changes that are subtle, experiential, and not readily quantified, as in "impair their health by wild living" or "his pleasure was impaired by worry about money."¹⁶ Moreover, this widely applicable interpretation of "impairment" is fully supported by the Redwoods Amendment's strong reaffirmation of the Organic Act standard, which prohibited any "derogation" of the "values or purposes" of the parks—a similarly qualitative standard of broadly applicable rigor.¹⁷

Undoubtedly, then, the Organic Act directive that the NPS must leave park resources "unimpaired" sets a confining limit on the extent and character of permissible adverse effects, regardless of source—whether from internal park management actions or from the transboundary impacts of external activities. Indeed, the no-impairment/no-derogation standard, if understood as applying to the subtle sort of adverse changes suggested by the dictionary definitions, sets an extremely strict standard and would seem to bar virtually any actions that would have more than de minimis adverse effects on park resources.¹⁸

Despite the textual rigor and primacy of the impairment prohibition, however, the Organic Act's accompanying statutory directive to provide for visitor "enjoyment" has provoked continuing debate over the proper role of the NPS in authorizing activities and developments in the parks whose impacts inevitably involve some degreeof "impairment."¹⁹ In view of the Act's explicit, albeit subsidiary, directive to "provide for the enjoyment" of park resources, it can be argued that the Act's "impairment" prohibition could not have been intended to adopt the dictionary meaning of the term in full rigor. Virtually any step taken within a park to provide for visitor enjoyment must, to some degree, "impair" affected resources within the meaning of the dictionary definition by diminishing them in quantity, value, excellence, or strength. Illustrative are the very ordinary examples offered by the NPS' memorandum to the district court in Dabney in support of the NPS' contention that a literal interpretation prohibiting "any impairment" would unworkably bar even traditional low-impact visitor activities:

It is clear that hiking and backpacking in Canyonlands can and do result in damage to portions of the fragile cryptobiotic crusts which overlay [the surface of] relatively rare soils within the Park and which are essential to the Park's ecology. . . . Under [a standard prohibiting "any impairment," the Act] would prohibit the creation or maintenance of foot trails as well as most hiking and camping in . . . any . . . area . . . that contains desert soils. This reasoning could be extended to virtually any use which has an impact of any substance in the back-country and could virtually prohibit public access of any kind to the attractions which led to the creation of the Park. Such a result is clearly not within the intent of Congress.²⁰

In short, the NPS argued that the "impairment" prohibition, if applied at full rigor (of the dictionary definition) would preclude the NPS from making even minimal provision "for enjoyment," despite that aspect of the statutory mandate.²¹ Similarly, the NPS later argued that a standard precluding "any impairment" "could effectively preclude visitor use in all units of the National Park System."²² If, indeed, that were the result of a rigorous interpretation of "impairment," it would undoubtedly violate the well-established axiom of statutory interpretation requiring that, ordinarily, all terms of a statute must be given meaning.²³

Thus, while a high level of protection for park resources was undoubtedly intended, the Act provides confusing guidance for park managers who must try to determine the point at which the adverse effects of visitor facilities or activities may become prohibited impairments. Lacking more detailed guidance, the Act nevertheless demands highly refined management judgments in walking that fine and heretofore [30 ELR 10707] largely invisible line. The Solomons counted on to make these refined judgments—NPS park superintendents and their staffs—daily confront the real-world dilemma that virtually any step they may take to accommodate visitors' needs or preferences has the potential for adverse impacts on park resources. Indeed, it is reasonable to speculate that practical decisionmakers may tend to devalue the impairment prohibition as hortatory—and impossible to apply literally—because virtually any services or facilities provided for visitors' "enjoyment" will inevitably cause some adverse impacts on preexisting "natural" park conditions, and could thus fall within the rigorous dictionary definition of "impair." Since the Act's internal contradiction forecloses literal application, it may be argued, it is open to an interpretation recognizing a wide range of discretion to "balance" the two main goals of resource protection and provision for visitor enjoyment. Yet, "balancing" seems clearly contrary to the explicit statutory priority given to the impairment prohibition, leaving park managers at risk of straying beyond the murky but mandatory line drawn by the statute.

Some limited NPS policy guidance, discussed below, has been available to assist these decisionmakers. But the contradictory ambiguity of the available guidance so thoroughly replicates the statutory contradiction²⁴ that park managers have largely been thrown back on personal, ad hoc situational judgments. Until the current policy initiatives, the judgments of these park managers have been guided primarily by an equally contradictory NPS culture. While many individual managers are clearly committed to resource protection, the dominant NPS culture has traditionally given great leeway for judgments that place high value on visitor facilities, services, and activities to serve recreational tourism.²⁵

The wide range of judgment that the NPS has left to individual park managers has been vigorously supported in litigation by repeated NPS assertion and occasional judicial endorsement of extensive administrative discretion. Thus, in Dabney, an NPS brief in the trial court litigation claimed that the park superintendent "states the Park Service position with regard to road development" when he asserted in a litigation affidavit that:

NPS interprets the act to provide scope for management decisions reasonably balancing the intrusion of such development within the natural environment with the commensurate and often conflicting mandate to "provide for the enjoyment of the same" and does not interpret such development to violate the requirement to leave park resources "unimpaired for the enjoyment of future generations." The mandate of the [NPS] is to balance visitor access to the parks with preservation and protection of natural resources.²⁶

The broad "balancing" authority claimed by the superintendent was supported by the argument in the same brief that "the Park Service's interpretation of the Organic Act, as well as its balancing of the potentially 'conflicting policies' that were committed to the agency's care by the statute, is [sic] therefore entitled to considerable deference."²⁷ Thus, the brief argued that the "Superintendent's balancing of the competing interests of resource protection and public enjoyment of the park in this instance was within the scope of NPS's broad discretion" because the superintendent offered a "rational basis" for his decision to approve continued use of four-wheel drive vehicles in the bed of Canyonlands' only perennial stream.²⁸

Unless the Organic Act's no-impairment provision requires something more than discretionary balancing, it is almost beyond argument that the NPS' position in the district court would have to be sustained. "Balancing" of the competing statutory considerations (if so conceived) would leave a virtual open field for impairing judgments. It would protect parks only against decisions that are irrational—capriciously uninformed, oblivious to relevant information, or wholly lacking in rational explanation.²⁹ The district court, however, correctly held that the Organic Act is not so gelatinous; that it establishes enforceable and more rigorous limits on NPS discretion that cannot always be satisfied by merely rational choices that strike a reasonable "balance."³⁰

Interpretation of the no-impairment/no-derogation standard, of course, must leave some room for "balancing." No judgment involving any significant conflict between visitor service and resource protection could be made without some weighing of the relative advantages and consequences of the choice. But any implication that management discretion to "balance" those competing considerations is unconfined by the Organic Act is neither endorsed by nor consistent with the basic policy explanation offered by the NPS' 1988 Management Policies document, even prior to the current policy initiatives. That document clearly recognized that the Act's no-impairment standard sets a mandatory limit on park managers' discretion to approve actions unless there is assurance that impairment will not result.

It is NPS policy to treat potential impairments in the same manner as known impairments. When there is thought to be potential for resource impairment, actions will be based on strategies that retain the resource in an unimpaired condition until such time as doubts are resolved. For example, if a development might impair a park resource, the development will be postponed or reconfigured until it can be established whether "might" is "will" or "will not," within reasonable limits of certainty. Absent that assurance, the action will not be taken.³¹

The Management Policies position is fully supported by the Organic Act text already reviewed: its mandatory commands to "conserve" and avoid impairment of park resources, and the explicit primacy the Act gives to that mandate [30 ELR 10708] over the subsidiary duty to provide for visitors' enjoyment. No credible reading of that text can support claims of unconstrained discretion to merely "balance" resource protection against visitor enjoyment. Moreover, the Act's rejection of such unlimited agency discretion was emphasized by Congress' explanation that it enacted the Redwoods Amendments to make clear that the Act established enforceable legal constraints on impairment.³² And while the pertinent case law is slim, it clearly holds that the Act established an enforceable standard of protection.

Unfortunately, most judicial decisions that have considered the extent of NPS discretion under the Act are only obliquely relevant because the issues involved did not concern the role of the Organic Act as a limitation on the discretion of the NPS itself to allow potentially impairing activities. Instead, typically, these cases dealt primarily with the breadth of the NPS' discretionary authority to design protective requirements that may restrict some uses of the parks. These types of decisions did, in fact, emphasize broad NPS discretion. But in considering NPS authority to impose requirements designed to protect park resources,³³ the courts in those cases had no occasion to consider the much different claims of NPS discretion to authorize activities that may impair those resources. The two or three decisions that have recognized the latter sort of NPS "balancing" discretion were rendered with little or no critical analysis, and purported to find their authority in the broad assertions of NPS discretion recited in the protection cases.³⁴ On the other hand, two key cases resulting from NPS failure to address impairments caused by lumbering adjacent to Redwoods National Park yielded decisions recognizing that the Act places enforceable limits on the breadth of NPS management discretion where the agency's action—or inaction—may itself threaten or permit impairment.³⁵

Recognizing that the prohibition against impairment imposes a basic, rigorous, and enforceable constraint, the central theoretical and practical question remains. On what basis, consistent with the Organic Act's protective goals, can the NPS retain discretion for NPS approval of visitor facilities, services, or activities? Given the virtual certainty of some adverse resource impacts from any action to "provide for the enjoyment" of park resources, is it possible to frame workable standards that will allow some reasonable latitude for visitors' facilities and recreational activities without "diminishing" the "quantity, value, excellence or strength" of park resources to the point of prohibited impairment? While such standards may draw a line that looks more like a swath of no-man's land than a distinct legal boundary, adequate policymaking and guidance still require some identification of concrete analytical indicators that should provide the measure of prohibited impairment.

Unfortunately, at least until the policy initiatives discussed below, provoked by Dabney, neither the NPS nor other park protection advocates (let alone their opponents) had grappled decisively with these questions, or offered concrete solutions for the interpretive quandary inherent in the Organic Act's text that makes them so difficult.³⁶

[30 ELR 10709]

This interpretive vacuum may at last be filled—at least partially—by the pending appeal in the Dabney case and a parallel NPS policy initiative in amending its Management Policies document. Difficult as the interpretive problem may be, the NPS may for the first time effectively address both the range of the agency's discretion to accommodate visitors and the limits on that discretion imposed by the "impairment" prohibition.

A Watershed Case, and Important Steps Toward a Meaningful No-Impairment Policy

In Dabney, the Utah federal district court in 1998 invalidated that portion of an NPS Backcountry Management Plan which would have allowed continuing use of four-wheel drive vehicles on the bed and riparian banks of the only perennial stream in the park. The Superintendent had approved that plan, and rejected the portion of a prior draft plan that would have closed the route to vehicles, despite an administrative record that showed serious, continuing, and further threatened damage to the stream's sensitive riparian biota, including wildlife and vegetation, as well as soils.³⁷ Although the Utah court recognized a substantial range of NPS discretion in upholding other aspects of the plan, it nevertheless held that the Organic Act imposes an enforceable bottom line:

Congress has issued a clear answer to the question of whether the [NPS] is authorized to permit activities within national parks that permanently impair unique park resources. The answer is no.³⁸

The decision of the district court in Dabney was the first since the two Redwoods cases in 1974-1975³⁹ to hold government action unlawful for violation of the Act, and only the third ever directly to enforce the no-impairment provision of the Act. In giving teeth to that provision, the decision also promised new legal substance in protection of national parks. Yet the opinion also suggested troubling qualifications by explaining its position in language that seemed to limit the impairment prohibition only to "permanent impairments" of "unique" park resources—a distinct narrowing of the statute with little or no basis in its text or legislative history.⁴⁰

Shortly after Dabney, as if to perpetuate the interpretive confusion reflected in NPS guidance and practices, a 1999 California federal district court recognized virtually unrestricted NPS discretion for internal management judgments involving potential impairment, rejecting an Organic Act challenge to a road reconstruction project in Yosemite National Park.⁴¹ Concluding that the Organic Act provided no basis for judicial relief, the court explained that "when the issue is confined to the Agency's exercise of discretion in attempting to balance valid, competing values," the Organic Act "does not mandate that the balance in any particular decision reflect one value over the other." In this court's unexplained view, the Organic Act would provide a basis for relief only if the NPS were "to allow use of a national park in a way that was clearly against the interests of future generations."⁴²

These opposing judicial views regarding the NPS' legal obligation to avoid impairment obviously reflected the continuing tension in the available case law as well as the statute, and demanded resolution. Important steps toward that needed resolution were taken when NPS moved to embrace the Dabney position (if not its specific rationale), declining to appeal that decision, and responding to an appeal filed by four-wheel drive groups by filing a brief that asserted an entirely new policy position. But the significance of that policy position must be appreciated by first taking account of the NPS' own past policy schizophrenia.

Evolution of the Policy Problem

At this point in NPS administration of national parks, there is little doubt that a less rigorous approach to the impairment standard has generally carried the day. As painstakingly and painfully driven home by NPS historian Richard Sellars, the NPS has a troubling history of administrative compromise and disregard of the no-impairment mandate in favor of promoting recreational tourism. Sellars' well-received historical study, Preserving Nature in the National Parks, documents a "long-dominant emphasis on accommodating public use in parks," reflected in an agency culture that

measured its success by indicators such as annual visitor counts; the increasing scope of its programs and size of the park system; and the number of new campgrounds, visitor centers, and related developments.⁴³

While the interpretive debate over the meaning of the Organic Act has remained unresolved, the stakes in that debate [30 ELR 10710] have escalated with the increasing demands placed on our national parks both by the multitudes of visitors seeking to "enjoy" them and by the increasingly varied mechanical means by which Americans, in particular, seek to carry out their "enjoyment." Virtually all of our parks have seen dramatic increases in visitation since the Act was amended in 1978 to prohibit "derogation" of park resources and values.⁴⁴ Visitors may once have been satisfied to view park features from main roads or stroll in nearby "front country" settings, but a growing minority of visitors now seek to backpack, ski, or ride horses into pristine wilderness and wildlife settings. Many others seek to access and use park settings for enjoyment of a growing variety of mechanized equipment: four-wheel drive vehicles; dune buggies; snow-mobiles; personal jet ski watercraft; base-jumping chutes, parasails; hang gliders; hovercraft; ballooning; low-flying air tours; and, inevitably, new contraptions or iterations of old ones.⁴⁵ Apart from the impact of these visitor activities on the experience of other visitors (which the NPS also recognizes a duty to protect), both the increase in these activities and the increasing intensity of the impacts, particularly those caused by mechanized uses, inevitably generate serious stress in ecological systems and degradation of the scenery and historic objects that are the central resources protected under the Organic Act.

The public demands and pressures on our national parks obviously give new urgency to resolving the interpretive uncertainty about the extent of dominance that the NPS and the courts should give to "no-impairment" over "visitor enjoyment." Yet controversy about that policy choice is also no surprise. While Yale historian emeritus Robin Winks has concluded that all of the primary proponents and drafters of the Organic Act intended the no-impairment provision to incorporate a high degree of protection,⁴⁶ he agrees that the reach of the no-impairment provision was left uncertain by the "contradictory mandate" imported when Frederick Law Olmsted Jr., the primary draftsman, inserted terms providing for visitor enjoyment as well as protection:

Herein lay an ambiguity and potential source for future conflict. "Enjoyment" reasonably required access, and at the time roads, trails, hotels, campgrounds and administrative facilities did not seem unduly invasive. The act cannot have meant that "unimpaired" was to be taken in its strictest sense . . . .⁴⁷

The continuing contradiction and ambivalence are replete in the NPS' own internal policy guides, which incorporate both the intent to provide a high level of protection and the "ambiguity" and "potential source for future conflict" perceived by Professor Winks. While the NPS' guidance has typically (though vaguely) emphasized the importance of resource protection, it has offered little specific guidance regarding the proper level of protection to be sought or the rigor of compliance to be required when park managers assess their options under the no-impairment standard.

The NPS' 1988 Management Policies document—its primary policy guide for park managers, now being revised⁴⁸—offers a candid if somewhat veiled acknowledgment of the basic policy problem that arises from the statutory standards.

Over the years, legislative and administrative actions have been taken that have brought some measure of change to [park resources and values]. Such actions impact park resources, yet they are not necessarily deemed to have impaired resources for the enjoyment of future generations. Whether an individual action is or is not an "impairment" is a management determination. In reaching it, the manager should consider such factors as the spatial and temporal extent of the impacts, the resources being impacted and their ability to adjust to those impacts, the relation of the impacted resources to other park resources, and the cumulative as well as the individual effects.⁴⁹

The 1988 policy document then addresses the problem with a formulation apparently demanding that all doubts be resolved in favor of rigorous protection:

There will inevitably be some tension between conservation of resources on the one hand and public enjoyment on the other. The [NPS] is charged with the difficult task of achieving both. . . . If and when a superintendent has a reasonable basis to believe a resource is or would become impaired, the Park Service may, as one of its management tools, temporarily close a specific area or otherwise place limitations on public use.

. . . .

It is NPS policy to treat potential impairments in the same manner as known impairments. When there is thought to be potential for resource impairment, actions will be based on strategies that retain the resource in an unimpaired condition until such time as doubts are resolved. For example, if a development might impair a park resource, the development will be postponed or reconfigured until it can be established whether "might" is "will" or "will not," within reasonable limits of certainty Absent that assurance, the action will not be taken.⁵⁰

[30 ELR 10711]

If adhered to, this risk-averse approach would provide substantial protection. Unfortunately, the 1988 policy statement offers only abstract and conclusory guidance for ascertaining impairment (or its probability), while claiming a wide range of management discretion. The factors suggested for consideration—"the spatial and temporal extent of the impacts, the resources being impacted and their ability to adjust to those impacts, the relation of the impacted resources to other park resources, and the cumulative as well as the individual effects"—are obviously pertinent and helpful. But the guidance provides virtually no other specific basis or process for assessing whether actions likely to cause adverse changes in park resources constitute "impairment."

Apart from this general guidance, the various management-specific provisions of the 1988 Management Policies simply assert or assume that management judgments will seek to conform to the no-impairment goal, or conversely, assume the appropriateness of visitor facilities, but offer little or no guidance for making the critical resource protection decision. For example:

. In providing for a range of management "zones" within parks, the document explains that "Park Development Zones" "are managed and maintained for intensive visitor use. Accordingly, roads, walks, buildings, and other visitor and management facilities may occupy much of the zones, and the natural aspect of the land in the zones may be altered." Development "will be restricted to the smallest area necessary to accommodate required development and use, with impacts mitigated to the greatest extent possible." New development zones are to be established "only after considering alternative sites (including locations outside the park and outside areas with significant natural and cultural resources) and alternative levels of use, facilities and services."⁵¹ No guidance is offered for making the judgments emphasized above, or indeed, for initial determinations regarding compatibility of "Park Development Zones" with the nonimpairment mandate.

. Park "Natural Zones" are to be managed for "the primary objective" of "protection of natural resources and values for appropriate types of enjoyment while ensuring their availability to future generations." Hence, "interference with natural processes in park natural zones will be allowed only" where required by statute, in emergencies, and in restoring natural ecosystem functions.⁵² No guidance is offered, however, for identification, size, or selection of park natural zones.

. Despite the foregoing, some development will be allowed in natural zones, "limited to dispersed recreational and essential management facilities that have no adverse effect on scenic quality and natural processes and that are essential for management, use, and appreciation of natural resources." The same paragraph offers "examples of typical facilities" which include (in addition to less impacting examples) "walk-in primitive shelters, walk-in storage facilities" and "small-boat docks." Though, any or all of those examples could cause adverse changes in scenic qualities, surrounding ecological patterns or wildlife behavior, no guidance is offered apart from the broad goal of protecting natural values.⁵³

. A wide range of recreational activities "that promote visitor enjoyment of park resources through a direct association or relation to those resources" are encouraged so long as they are "consistent with the protection of resources." Parks are required to develop "visitor use management plans"⁵⁴ which must "ensure that recreational uses . . . are not carried out in derogation" of park resources and values. Yet the only further guidance in this regard seems to heighten the risk of impairment, and further complicate the difficult judgments to be made, by providing that "any restrictions on recreational use will be limited to the minimum necessary to protect park resources and values and to promote visitor safety and enjoyment."⁵⁵

. Guidance on park facilities development is utterly silent about compatibility with the mandate to avoid impairment or derogation of park resources. Though no explanation is offered, the implied message may be that these facilities are traditionally viewed as so fundamental to public access and enjoyment that the NPS chooses to treat them as if they are exempt from the statutory standard. Rather than address the obvious conflict, the Management Policies document simply asserts what amounts to a different standard: "Visitor and management facilities . . . will be harmonious with park resources, compatible with natural processes, aesthetically pleasing, functional, [and] as accessible as possible to all segments of the population . . . ." They "will be integrated into the park landscape and environs so as to cause minimum impact" and "will not compete with or dominate park features." These conclusory aspirations, of course, provide essentially no guidance for the difficult judgment about whether, where, and how extensively to construct facilities that will have obvious and significant impacts on park resources.⁵⁶

Similarly ambivalent or vague guidance is provided by the 1988 Management Policies document with regard to a host of other issues that routinely raise difficult questions about the conflict between preservation and use or development. Park road construction should "enhance the visitor experience, and be sensitive to environmental factors"⁵⁷; trails should be designed and managed "to allow for a satisfying park experience and to protect resources"⁵⁸; and visitor centers "will generally not be located near" "major park [30 ELR 10712] features" in order "to minimize visual intrusions and harm" to those features.⁵⁹ Obviously, all of this guidance states aspirations that could fulfill the statutory goal of nonimpairment. Equally obvious is its inadequacy from the standpoint of a park superintendent who must choose among highly concrete options, as well as from the standpoint of a federal judge who may wish to understand the basis for a particular choice or its consistency with established NPS policy.

There appears to be some hope that, provoked by the district court decision in Dabney, the NPS will provide more effective guidance in its impending revision of the Management Policies document.

"Laying Down the Law" in Dabney and the NPS' First Stab at More Explicit Policy Guidance

Lacking specific "impairment" guidance, it is little wonder that the superintendent of Canyonlands National Park ultimately decided to approve a Backcountry Management Plan that continued to allow use of four-wheel drive vehicles in the bed of Salt Creek. Although a draft management plan and environmental assessment had recognized that this activity was causing damage to wildlife and vegetation, it also recognized that use of the stream bed as a vehicle route was a long-standing and popular activity with four-wheel drive enthusiasts.⁶⁰ That fact was driven home by numerous inquiries about the plan and proposed closure from influential congressmen, including a particularly caustic and detailed demand for explanation from Rep. James Hansen (R-Utah), chairman of the House Subcommittee on National Parks and Public Lands.⁶¹ Moreover, though not an express consideration, it could not have been irrelevant to the superintendent's "balancing" judgment that he was simultaneously seeking to generate support for a major park expansion proposal.⁶² Finally he concluded, rightly or wrongly, that in lieu of closing the stream to vehicles, the damage could be significantly reduced by adoption of a permit system that would limit the number of vehicles and camping destinations. So explaining his reversal of field, the superintendent ultimately rejected a proposal in the draft plan to forbid vehicles in all but the lower reach of the stream, and instead decided to allow continued extensive vehicle use under a permit system.⁶³

Confronting an Organic Act challenge to the plan, the NPS vigorously argued in the district court that its broad management discretion under the Act "call[s]for a balancing of visitor access and resource values," relying in part on an affidavit by the park superintendent which read, in part, as follows:

NPS has interpreted its organic act to both contemplate and permit development of roads and other facilities to provide for visitor access to, use and enjoyment of the resources of national parks, even though such developments . . . inevitably damage resources in the parks. NPS interprets the act to provide scope for management decisions reasonably balancing the intrusion of such development within the natural environment with the commensurate and often conflicting mandate to "provide for the enjoyment of the same and does not interpret such development to violate the requirement to leave park resources" unimpaired for the enjoyment of future generations.⁶⁴

Citing various considerations recited by the superintendent "in balancing of issues and values that went into the decision," the NPS' brief emphasized that the superintendent's decision "was the kind of balancing of [NPS] responsibilities to conserve resources and provide access that are inherent in Congress's charge . . . and is entitled to great deference."⁶⁵

The court's opinion rejecting these NPS arguments is the first that has found and enforced a concrete limit on the agency's discretion under the Organic Act's impairment prohibition.⁶⁶ Responding to the NPS, the Dabney court held that the Organic Act set an enforceable limit on NPS discretion to "balance" which supervened any deference to agency interpretation of ambiguous statutory terms otherwise required by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.⁶⁷

Congress has issued a clear answer to the question of whether the [NPS] is authorized to permit activities within national parks that permanently impair unique park resources. The answer is no. [The NPS'] mandate is to permit forms of enjoyment and access that [30 ELR 10713] are consistent with preservation and inconsistent with significant permanent impairment.⁶⁸

Important as it is in giving enforceable effect to the no-impairment "bottom line," the Dabney opinion also included troubling qualifiers (italicized above) which emphasized the continuing need for more clear and comprehensive policy declarations by the NPS.

The Dabney opinion made clear that the court enforced the impairment prohibition because the superintendent's decision disregarded both the importance of the resources in question and the severity of the damage being caused. Emphasizing that Salt Creek was the only perennial freshwater stream in the park and supported significant riparian vegetation as well as dependent wildlife and aquatic species, the opinion went on to explain that the NPS had crossed the line of prohibited impairment, as follows:

Given the uniqueness of its riparian areas and the availability of less-invasive forms of access, permanent impairment of Salt Creek Canyon in order to permit the continued use of four-wheel-drive vehicles beyond Peekaboo Spring cannot be reconciled with the Organic Act's overarching goal of resource protection.⁶⁹

The court's use of the italicized qualifiers was clearly not accidental. Indeed, the intent to so interpret and qualify the no-impairment standard was also explicit in the court's statement of reasons for rejecting challenges to other aspects of the management plan which allowed four-wheel drive vehicles to use other stream beds. The opinion reasoned that deference must be accorded those aspects of the decision because "Congress has not specified the proportional weight to be given resource protection relative to visitor enjoyment with respect to a form of access that does not permanently impair a unique park resource." Hence, because driving in the other areas did "not permanently impair a unique park resource," the court held that the NPS had lawfully approved the activity as a "reasonable accommodation of competing interests."⁷⁰

The qualifiers included by the court—limiting the no-impairment standard to "permanent" impairment of "unique" park resources—have little or no basis in the text of the statute or its legislative history; nor are they explained in the opinion. Conceivably, some slim basis for a "permanence" limitation could be derived from the phrasing of the statutory command to avoid impairment in order to ensure "the enjoyment of future generations"—but only if one can find justification for confining "enjoyment" to generations rather far in the future. But the possibility that, viewed "down the ages," an impairment will look less impairing hardly seems a satisfying basis for ignoring the legitimate interests of current and near-future generations (who were surely "future generations" in 1916 when the statute was enacted). And no basis at all can be found in the statute to justify limiting its protection only to "unique" park resources.

It is possible, however, to suggest an alternative explanation for the Dabney court's choice of qualifying language that leaves the decision open to further NPS policy making. As summarized above, the court emphasized an administrative record which it took to demonstrate both the "uniqueness" of the resource involved and the "permanence" of the damage documented by the NPS.⁷¹ Thus, in deciding to draw an enforceable line and reject the claims of broader agency discretion, the court may simply have concluded that it was unnecessary to go beyond the relatively clear case made by the record.

Strangely, however, in generating its first policy response to Dabney after declining to appeal, the NPS duplicated the court's use of unexplained and limiting qualifiers.

The NPS' Policymaking Response to Dabney

Impending changes in the rigor and specificity of the NPS' interpretation of the Organic Act's no-impairment provision were first signaled when the NPS let pass, without filing, the period for appeal from the Dabney decision. Only when an appeal was filed and briefed by intervenor four-wheel drive groups did the NPS then file an explanatory brief with the Tenth Circuit. Although captioned as an appellee's brief, it explicitly asserted that the NPS "does not contest on appeal the judgment entered below concerning the use of motorized vehicles in Salt Creek Canyon . . . ."⁷² Rather, the NPS explained that the brief was submitted solely "to advise the Court of the Department's views as to the proper legal construction of the Act" and to explain that the NPS "is currently taking steps to revise park policy consistent with that construction."⁷³

The brief explained that, "in light of the [district court] decision, the [DOI] has conducted a substantive reassessment of the proper construction of the Organic Act," and then went on to offer the NPS' first public rendition of its revised policy:

It is the [DOI's] view that the governing standard, which best comports with the language of the Act, provides that the permanent impairment of those resources whose conservation is essential to the fundamental purposes and values for which an individual park has been established is not permitted under the Organic Act. In turn, the [NPS] has discretion under the Act to determine what resources are essential to the values and purposes of a particular national park, and what constitutes the permanent impairment of those resources.⁷⁴

Other expressions of the proposed standard in the brief were essentially identical. Occasionally, however, the phrasing even more explicitly confined the protected resources solely to those identified by a particular park's enabling legislation, rather than extending protection to all resources within the broad categories identified by the Organic Act (i.e., the "scenery and the natural and historic objects and the wild life therein . . . ."). In detailing its argument and asserting broad management discretion, for example, the brief again asserted the new NPS position:

Thus, the [DOI's] interpretation of the Organic Act—prohibiting the [NPS] from allowing activities [30 ELR 10714] within national parks that permanently impair essential park resources, as determined by a particular park's fundamental values and purposes under the relevant enabling act—is clearly a permissible construction, and indeed, that which best comports with the language of the Act.⁷⁵

It may not seem a radical departure for an agency to acknowledge its acceptance of the explicit requirements of its organic legislation, particularly when coupled with a continuing claim of wide discretion. Yet, given the NPS' prior claims of unfettered discretion to "balance" resource protection against use and "public enjoyment," the brief constituted a major departure, directly acknowledging that the DOI's new interpretation was "different from that under which the administrative decision was rendered by the agency and defended in the district court."⁷⁶

Thus, despite the troubling qualifiers italicized above, and considered in light of its decision not to appeal, the NPS' acknowledgment of Organic Act constraints was clearly intended to reflect acceptance of a heightened duty of protection under the Act. By accepting the court's judgment that vehicle use in the stream bed was impairing, and expressly recognizing that such impairing impacts are simply "not permitted," the NPS effectively acknowledged that the Act imposes specific and enforceable limitations on NPS discretion.⁷⁷ Indeed, the NPS conspicuously cited and relied on the district court's opinion in acknowledging that "by directing the [NPS] to regulate and manage the parks in such a way as to leave them 'unimpaired for . . . future generations,' [the Act] is properly construed as precluding the authorization of activities which will" permanently impair.⁷⁸ Moreover, these NPS concessions effectively disavowed any open-ended authority to "balance" opposing values, as advocated in the district court by the superintendent, and suggest disapproval of uses or developments in the parks that will cause adverse effects—at least where those effects may cause "permanent" impairment of "essential" resources.

However, the qualifications included in the NPS' new statement of position, italicized above, also raise troubling questions. Like the similar qualifiers in the Dabney opinion, that language seemed designed to impose significant limitations on the application of the impairment prohibition. These limitations might easily have been understood by park managers—and reviewing courts—as setting restrictive bounds on authority to prioritize resource protection whenever decisions involve potential conflict between resource protection and visitors' "enjoyment." If applied restrictively, these qualifications of the no-impairment standard, together with the explicit claim of broad discretion to make the key determinations, would have left park managers with little useful guidance, perpetuating a regime in which park managers must make decisions with no effective legal shield against politically driven demands for tourist development.

Specifically, the above formulation of the new NPS position seemed to claim continuing discretion to determine that the impairment prohibition would not apply if:

(1) The impairment will not be "permanent"; or

(2) The resources impaired are not "essential" to certain relevant purposes and values; or

(3) The "purposes and values" served by the impaired resources are not among those "for which an individual park has been established" or listed in "the relevant enabling act" for a particular park.

These potentially restrictive limits on the no-impairment policy prompted vigorous reaction from two mainline conservation groups, who responded to the NPS' brief with a strong protest to the NPS' director, complaining that there is no statutory basis for any of these qualifiers.⁷⁹ Certainly, however protective the agency's intentions, the NPS' choice of language gave ample grounds for complaint, for nothing in the Organic Act suggests these limitations. And like the opinion in Dabney, the NPS' brief offered no explanation or basis for narrowly limiting the protected resources and values to those somehow deemed "essential"⁸⁰ rather than embracing the inclusive categories of protected resources listed in the Organic Act. Nor did the brief offer any rationale or justification for the suggested limitation to "permanent" impairments, a constraint no better supported by the NPS' brief than by the district court opinion in adopting the same limitation. Indeed, it seems likely that even those drafting the NPS' position may not have intended the significant limitations on protection which the language suggests. Rather, there is reason to think that those drafting the NPS' briefing position may actually have intended to strengthen the NPS' park protection policies. Certainly the more refined version of the no-impairment policy later set out in the draft revision of the NPS' Management Policies document included modifications and definitions that would establish a much broader range of protection.⁸¹

[30 ELR 10715]

Complicating and further limiting the scope of protection proposed by the brief was repeated language which explicitly suggested that the "purposes and values" to be protected were only those identified by the specific park's enabling legislation—an approach that would distinctly narrow the realm of protection. It would exclude the wide range of resources making up the "scenery and the natural and historic objects and the wildlife therein" identified for protection by the Organic Act, unless those resources also happened to be specified by a park's enabling legislation. The brief's "Summary of Argument," for example, rephrased the new policy position to say that the Organic Act "precludes activities within national parks that permanently impair essential park resources, as determined by the fundamental values and purposes established under the relevant enabling act for each park."⁸² While the other qualifying terms were simply lacking in statutory foundation, this limitation would directly contradict a further Organic Act provision which expressly provides that the Act's requirements "shall be applicable to all areas within the National Park System."⁸³ Moreover, because park enabling legislation has often given little attention to identification of protected resources, many significant parks and resources would be excluded from protection altogether if protection were limited to resources specifically identified for protection by a particular park's enabling legislation. In the end, however, it seems doubtful that the NPS ever intended to so confine the no-impairment provision. While it never expressly utilized the broader Organic Act summary of protected resources, the brief at other points confusingly suggested that the relevant resources would include "the full spectrum of tangible and intangible attributes for which a park has been established and is being managed."⁸⁴

Finally, a further difficulty with the NPS' position as stated in the brief was its continuing failure to define "impairment." The omission of a formal definition is understandable in view of the fundamental policy judgment involved, the inherent difficulty of such line drawing complicated by the wide spectrum of potential impairments to which it would be applied, and the need to account for the duty to provide for visitors' enjoyment. But though a single definition may be infeasible, the more troubling omission was the failure to provide any kind of specific guidance in identifying elements that could, at least, help park managers draw the line (or swath) between "adverse effects" and "impairment." The best the NPS could offer was a slightly modified version of the vague Management Policies guidance to the effect that an impairment determination

will require the assessment of such factors as the spatial and temporal extent of the impacts on a particular resource, the nature of the resource being impacted and its ability to adjust to such impacts, the interrelationship of the impacted resource to other park resources, and the cumulative as well as individual effects.⁸⁵

New and More Detailed Guidance: The Revision of the NPS' Management Policies

Simultaneously with submission of its brief in Dabney, the NPS was moving to draft and incorporate a new interpretive statement of impairment policy in a pending revision of its authoritative Management Policies guidance document. The NPS struggled through an intense internal debate to revise the content of the policy statement previously asserted in the brief, completing publication of its Management Policies draft for public comment barely in advance of oral argument in the Dabney case.⁸⁶ Publicly released on the same day as argument, the substantially revised policy document was submitted to the Tenth Circuit.⁸⁷ At stake in the new policy document were the broad parameters—and to some extent the location and specificity—of the lines that the NPS proposed to draw in administering the Organic Act's no-impairment policy. However incomplete or defective critics may find the new policy, it represents a huge step in the direction of more effective protection for our national parks, based on fundamental NPS rethinking of the position it took in its Dabney brief, as well as rethinking of the unconstrained "balancing" approach previously left to park superintendents. The significance of the shift in the NPS' policy position is suggested in excerpts from the letter by which the Interior Solicitor's office transmitted the new Management Policies document to the U.S. Department of Justice for submission to the court:

The proposed NPS policies, if adopted, would revise and clarify the interpretation urged in the government's brief to the Tenth Circuit. In particular, the proposed policies directly address impairment. The [Dabney] standard that the organic Act precludes permanent impairment is correct, but would be under inclusive if the proposed policies are finally adopted. . . . [They] are based on a premise that the Organic Act also forbids broader categories of impairment in addition to those considered as permanent, especially given the many kinds of potential harms to resources.⁸⁸

The NPS' rethinking offered a fundamental revision of the position asserted in the Dabney brief and proposed criteria that, if applied as written, will substantially strengthen park protection. In particular, the key elements of the NPS' position [30 ELR 10716] in Dabney that might have severely compromised Organic Act protection were reframed in terms that promise to strengthen protection. To that end, the new public draft:

(1) Abandoned any qualifier requiring that a prohibited impairment be "permanent,"

(2) Defined "essential" park resources so broadly that inclusion of that qualifier in describing the resources to be protected may have little significant restrictive effect on the scope of no-impairment protection; and

(3) Made clear that the "essential" park resources to be protected are not confined to those identified in the individual park enabling acts, but also embrace all resources fairly within the broad categories identified by the Organic Act, as well as virtually any other resources and values for which a park is managed.

Presented as "the agency's interpretation"⁸⁹ of the Organic Act and Redwoods Amendments, the draft offers strong assertions of the basic no-impairment requirement. Although the draft's first-time effort to define "impairment" continues to leave that concept murky,⁹⁰ other requirements for application of the concept would be substantially enhanced. New provisions would not only provide for much broader resource protection, but would establish decisionmaking requirements that should ensure much more careful assessment of proposed activities that could result in prohibited impairments. Park managers would be required to make written determinations regarding impairment, which must address specified factors and considerations, and give full consideration to pertinent environmental review documents, results of relevant scientific studies and public comments.

In addition to the importance of public, rationalized decisionmaking, the strength of the new draft Management Policies lies in definitions and explanations that vastly broaden the realm of protection beyond that suggested by the NPS' brief in Dabney.

To begin with, the draft's assertions of the NPS' basic policy positions establish an essential, if obvious, framework by placing unabashed emphasis on the predominance of the Organic Act's no-impairment requirement. The draft leaves no doubt that the impairment prohibition takes priority over NPS management activities designed to promote public enjoyment of the parks. Thus, while acknowledging that "enjoyment of park resources and values by the people of the United States is part of the fundamental purpose of all parks," the draft is explicit about the NPS' priorities:

Congress, recognizing that the enjoyment by future generations of the national parks can be assured only if the superb quality of park resources and values is left unimpaired, has provided that when there is an unavoidable conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant. There are dual elements to the Organic Act's single fundamental purpose, but those elements are not equal. Rather, the Act is explicit that enjoyment of park resources and values is to be allowed only to the extent that can be done without impairing those resources and values.⁹¹

Similarly, the draft offers a powerful direct statement of the NPS' basic duty to prevent impairment:

Preserving park resources and values unimpaired is the core responsibility of NPS managers. Impairment of park resources or values, as defined above, is not permissible under the law, unless directly and specifically authorized by Congress.⁹²

The key definitions, explanations, and requirements giving content to these basic policies, and dramatically modifying the Dabney position, include the following:

(1) Rejection of any Requirement That a Prohibited Impairment Be "Permanent"

The interpretation of the Organic Act offered both by the Dabney opinion and the NPS' brief to the Tenth Circuit in that case had taken the position that adverse effects on park resources must be "permanent" in order to constitute an impairment. That condition, for which there was little or no textual or interpretive basis, has not only been eliminated entirely from the NPS' position, but is emphatically rejected. Following the direct statement of the NPS' "core responsibility" to prevent impairment last-quoted above, the statement goes on to emphasize that "any impact constituting an impairment is prohibited no matter how long the impairment would last—regardless of whether it would be a temporary, short-term, long-term, or permanent impairment."⁹³ While the "duration of the impact" is still identified by the draft as one of the factors that managers must assess in determining potential impairment,⁹⁴ the draft's definition of impairment is nevertheless explicit that it includes interference with opportunities to enjoy park resources by "present" as well as "future generations."⁹⁵

(2) Broad Definition of the "Essential Park Resources and Values" Protected Under the No-Impairment Provision

Because "park resources and values" are the object and limit of the protective provisions elaborated in the NPS' Management Policies, the definition of that concept is of considerable consequence. At first glance, the new draft is troubling because the NPS apparently felt constrained by its representations to the Tenth Circuit in its Dabney brief to maintain, in some manner, continued use of the qualifier "essential" in referring to protected park "resources and values." Thus, the draft policy continues to specify that the objects of Organic Act protection are "all the resources and values of a park whose conservation is essential to the purposes"⁹⁶ of a park. That phrasing, however, is part of a definition section that identifies broadly inclusive categories of "essential" resources and values, as follows:

"Park resources and values are all the resources and values of a park whose conservation is essential to the purposes for which the area was included in the national park system . . . . Under the organic Act and the General Authorities Act, these resources and values always include, [30 ELR 10717] but are not limited to, all of the following to the extent they are present in a park: the biological and physical processes that created the park and continue to act upon it; scenic features; natural landscapes; natural soundscapes and smells; water and air resources; soils; geological resources; paleontological resources; archeological resources; cultural landscapes; ethnographic resources; historic and prehistoric sites and structures; museum collections; native plants and animals; and clear daytime vistas and night skies. The term also includes opportunities to experience enjoyment of the above resources and values, to the extent that can be done without impairing any of them.⁹⁷

To repeat and emphasize: this phrasing makes it explicit that the "resources and values . . . whose conservation is essential . . . always include, but are not limited to" all the items in the immediately following inclusive and comprehensive list. If, as the definition says, "essential" park resources include the entire list identified by the above provision, the new draft has vastly broadened the extent and character of the protected resources. It all but entirely avoids the restrictive implications of the term "essential" as it was used in the Dabney briefing position to describe the protected resources and values. In fact, given the breadth of the above definition, it seems entirely superfluous for the NPS to retain the term "essential" at all in any policies stating the scope of protection under the no-impairment provision. Indeed, if any resource or value cannot fairly be brought within the protective scope of that list, it would have to be assumed that it was unintentionally omitted.

(3) Broad Recognition of the Statutory Authorities That Identify Resources for Protection

The new draft Management Policies document also makes clear that the resources and values identified for Organic Act protection are not confined to those specified by individual park enabling acts, as seemed to have been proposed or implied by the NPS' brief in Dabney.⁹⁸ Rather, the new draft is explicit that "park resources and values" include

both the Organic Act's fundamental purpose for all parks, as supplemented and clarified by the General Authorities Act, and any additional purposes stated in a park's enabling legislation or proclamation.⁹⁹

The provision goes on to emphasize the inclusiveness of those statutory sources by specifying that they yield the broadly inclusive categories of "essential" resources and values quoted in the previous section.¹⁰⁰

(4) New Obligations to Make Written Determinations Regarding Impairment, Including Impairments From Existing or Ongoing Activities

The Management Policies innovation that is probably most likely to enhance effective protection of park resources is the proposal to require park managers to make written determinations regarding potential impairment before allowing actions to go forward that could result in impairment.

Of course, park managers are already required by the National Environmental Policy Act (NEPA)¹⁰¹ to assess the environmental consequences of proposed actions, but the descriptive, nonsubstantive focus of those environmental reviews does not explicitly require a specific determination regarding compliance with the Organic Act standards. In contrast, the new draft Management Policies would impose a duty to make that determination wherever there is a "reasonable question" about whether a specific proposed action could cause impairment. Moreover, the rigor of this obligation is intensified because an action cannot be approved until the manager determines that it "will not" cause impairment—a standard that appears to shift the burden of justification to the project, rather than allowing it to go forward if there is doubt about impairment.

The new draft's statement of this new procedural obligations is unqualified:

Before approving a proposed action about which there is a reasonable question whether it could lead to an impairment of park resources and values, an NPS manager must consider the impacts of the proposed action and determine, in writing, that the activity will not lead to an impairment of park resources and values.¹⁰²

The proposal goes on to require consideration of a wide range of factors likely to be important in assessing potential impairment. These include:

1. "The park resources and values that would be affected." A summary of relevant considerations under this heading includes recognition that impairment "more likely" if the resource or value that may be affected "has been specifically identified for protection" in the park enabling legislation or is one "whose conservation has been emphasized in the park's general management plan" or other planning document. In addition to the breadth of resources that may be protected under the latter provision, this section of the draft also avoids undue narrowing of the range of protected resources by explicitly providing that impairment may result from "an impact to any park resource or value."¹⁰³

[30 ELR 10718]

2. "The extent of the impact, including both direct and indirect impacts."¹⁰⁴

3. "The duration of the impact." Elaboration of this consideration emphasizes that while a long-lasting or permanent impact "is more likely" to involve impairment, an impact "lasting any length of time" may also constitute impairment.¹⁰⁵

4. "The timing of the impact." Elaboration of this consideration emphasizes that impairment is more likely where the impact occurs "during a time that is particularly important to the resource or value being affected," such as a species' breeding season.¹⁰⁶

5. "The cumulative effect of the impact" when considered with other prior impacts on park resources and values."¹⁰⁷

The draft obviously identifies these factors in fairly general terms for consideration by park managers. Nevertheless, the duty to address them would provide a substantial foundation for protective decisions, as well as for effective supervisory and judicial review, if relevant factual considerations are adequately developed—as the proposal goes on to require. That goal is served by a specific further provision that would explicitly require the park manager, "in evaluating the above factors," to "conduct and consider environmental assessments or environmental impact statements"; to "consider relevant results of scientific studies of the park resources that could be affected"; and to "seek and consider public comments."¹⁰⁸

Some Remaining Problems With the New Organic Act Policies

Obviously, the effectiveness of the NPS' new and more focused interpretation of the Organic Act's no-impairment duty will depend upon the rigor with which its application is supervised and applied by the NPS' leadership, as well as the extent to which the federal courts respect the NPS' guidance in conducting judicial review of disputed actions approving claimed impairments. In several areas, however, important issues remain to be addressed.

Failure to Resolve Uncertainty About the Scope of the NPS' Duty to Promote Visitors' Enjoyment

The district court in Dabney diminished a favored realm of NPS discretion in holding that the agency's approval of continued four-wheel driving in a park stream bed had gone too far in responding to the "popularity of four-wheel-drive travel":

"Visitor enjoyment" as used in the statute refers to visitor enjoyment of park scenery, wildlife, and natural and historic objects that are to be preserved. As used in this sense, visitor enjoyment does not refer to visitor enjoyment of outdoor recreational activities. Opportunities for outdoor recreation are provided on lands managed by the Bureau of Land Management and the Forest Service.¹⁰⁹

In short, the court ruled that the NPS could not assume an indefinitely expansive scope of its discretion to approve activities that adversely affect park resources where those activities involve outdoor recreation unrelated to "enjoyment" of the resources identified for protection in the Organic Act.

The NPS' "advisory" brief to the Tenth Circuit challenged that interpretation, arguing that "the court's differentiation of those [Organic Act] forms of enjoyment from the enjoyment of outdoor recreation is a false one":

A visitor using a four-wheel drive vehicle, a mountain bicycle, an ice ax, a set of skis, climbing equipment, or hiking boots may be doing so because he or she is seeking access to scenery, wildlife, geologic features or other unique park resources. . . . The enjoyment of a park for recreational purposes and for scenic and other purposes are interrelated and concurrent forms of enjoyment, related to the resources of a given park unit.¹¹⁰

The NPS went on to argue that regulation of activities that would depend on whether their purpose is simply "recreational" would require differentiations that would be "difficult, if not impossible, for the [NPS] to administer . . ." and converted that objection to a further claim for broad discretion:

The relevance of the type and mix of visitor "enjoyment" is properly left to the [NPS'] expertise in determining, under the circumstances of a given use and the resources of a given national park, whether a particular activity will permanently impair or derogate such resources."¹¹¹

Undeniably, the NPS' argument identifies issues that greatly complicate its role in providing for "enjoyment" while preventing impairment. But in taking the above position without acknowledging the problem presented by the demand for vehicle recreation, the NPS swept under the rug an increasingly difficult aspect of its park protection role, and treated the Organic Act as if it provides for "visitor enjoyment" of "outdoor recreation" independently of resource preservation. While the NPS' brief acknowledged the impairment prohibition as a limitation on these activities, it nevertheless argues for broad discretion to promote visitors' recreational preferences without the need to consider their relationship to enjoyment of the resources specified by the Organic Act.

The NPS' position raises a basic and critical question: does the Organic Act language directing the NPS to provide for "enjoyment" of park resources give the NPS discretion to make management choices that favor the full range of visitors' preferred forms of outdoor recreation without regard for their relative contribution to enjoyment of park resources? That question could significantly affect the NPS' approach to its stewardship in addressing a host of disputes about the appropriateness of some kinds of recreational activities in the national parks.¹¹²

The text of the Organic Act unambiguously rejects the above NPS approach. First, the Act explicitly requires the NPS to proceed by means that will avoid impairment of park resources as it performs its statutory functions of "conserving" park resources and providing for their "enjoyment." Second, the NPS has no general mandate to provide for "enjoyment" [30 ELR 10719] of outdoor recreation. In providing for enjoyment of "the same," the text unambiguously refers only to "the scenery and the natural and historic objects and the wildlife therein" as listed in the Organic Act. Hence, recreational activities are within the NPS' mandate only to the extent that they contribute to enjoyment of—rather than enjoyment of vehicles in the presence of—the protected park resources.

Obviously, these observations merely identify, and do not purport to resolve, this difficult aspect of the NPS' obligation to avoid impairment. But although the Dabney case highlights the significance of the problem, it is simply left unaddressed in the NPS' effort to refine its no-impairmentpolicy in the Management Policies draft. While the draft does later address the problem in terms more consistent with the above analysis,¹¹³ no guidance helps managers in making decisions that raise the fundamental interpretive problem posed by claims for enjoyment of outdoor recreation for its own sake.

Defining "Impairment" as an Interference With "Integrity" of Park Resources and Values: Unintended Vagueness or a New Limitation on the Impairment Prohibition?

Commendably, in addition to ensuring broad scope for application of the impairment prohibition, the new draft Management Policies make a first-ever effort to provide a working definition of "impairment":

The "impairment of park resources and values" is an adverse impact on one or more park resources or values that interferes with the integrity of the park's resources or values, or with the opportunities that otherwise would exist for the enjoyment of them by the present or a future generation.¹¹⁴

Unfortunately, this definition of "impairment" may actually exacerbate the vagueness of the term by designating "integrity" of a park's resources or values as the focus of inquiry. The difficulty, of course, is that "integrity" of a given resource—and existence of an "interference" with that integrity—may be very much in the eye of the beholder or individual decisionmaker. To assess the use of that term by application to the issues in the Dabney case, for example: is the "integrity" of a stream bed "interfered" with by four-wheel driving on the stream bottom? The draft's use of the term "integrity" provides undesirably ample room for four-wheel drive advocates (or for the "balancing" inclinations of some park managers), who may contend that stream "integrity" is intact, despite the vehicles, because it continues to flow, clears from intermittent sediment disturbance, and continues to nourish riparian vegetation. Similarly, if the continued "integrity" of a resource is the measure of "impairment," there will be little concrete foundation to rebut the argument (sure to be offered) that the "integrity" of the scenic and mystical qualities of Canyonlands' backcountry arches are not "interfered" with by allowing four-wheel drive access or the revving and repair of engines in the immediate vicinity of an arch. No concrete or limiting understanding of the term "integrity" seems available to rebut the argument that, after all, there is no direct impact on an arch itself.

In short, the term "integrity" provides no readily available basis for identifying any enforceable content or protective parameters. The NPS may properly wish to maintain a certain level of discretion, permitting it to somewhat expand or contract the range of qualities comprising the "integrity" of resources to be protected. But that same discretion will permit forces less friendly to the preservation of our parks to manipulate legal arguments about protection for political ends. Moreover, the term provides only an obscure goal for NPS managers who must make the determination of potential impairment in complying with the new review process contemplated by the draft.

The question remains whether it is feasible to adopt an approach that is less pliable, and more concretely protective, to characterize the quality or condition that is to be the basis for concluding that an "adverse impact" constitutes an "impairment."

It must be acknowledged that development of a workable alternative is a demanding intellectual and practical task. However, because of the importance of the impairment concept in the protective framework for our parks, is well worth investing further effort. Obviously, the NPS must retain some reasonable degree of flexibility in providing for visitors' opportunities to visit and enjoy a park, recognizing that providing for such opportunities will involve adverse impacts, sometimes significant. Nevertheless, the impairment standard must fulfill the aspiration of maintaining the parks unimpaired for future generations by preventing all those adverse impacts that could measurably diminish the viability or quality of any of the park resources and values.

One possible approach may be to abandon the search for a key word, such as "integrity," to identify the characteristics or conditions to be maintained against impairment. Instead, the burden of meeting an ambiguous standard should be placed on those whose actions may adversely affect the parks. Analysis of impairment would begin simply with identification of the qualities or conditions of a potentially (or actually) affected resource that would prevail in the absence of the adverse impact. Those qualities or conditions should set the baseline against which any adverse impact must be assessed. That baseline standard would be maintained by establishing a presumption that an impact which may cause any discernible adverse change in those qualities or conditions is an impairment. The presumption could be rebutted, but only where it is affirmatively demonstrated that the change will not diminish the role of the affected resource, or of a larger resource or ecosystem of which it is a part, in performing its ecological, geological or other natural or experiential function as a part of the resources and values of the park.

Failure to Make Clear That the Management Policies' Application of the Impairment Prohibition Is Applicable to Impairments Originating Outside Park Boundaries

Finally, a further important problem arises from failure of the new draft guidance to address effectively the problem of external threats to the parks. The long-standing failure of the NPS to take the initiative by effectively invoking the Organic Act to address threats originating beyond park boundaries has generated a climate of uncertainty and managerial [30 ELR 10720] hesitancy in the face of increasing external threats.¹¹⁵ Despite that fact and the NPS' own repeated recognition of the importance of the problem, these new draft Management Policies offer only brief and ineffectual guidance for application of the no-impairment policy in addressing that problem.

To the NPS' considerable credit, the issue is no longer ignored. The draft is explicit in asserting that the no-impairment mandate "applies to threats to those resources and values from outside parks as well as from within parks,"¹¹⁶ though that assertionis compromised by the vague and too-broad further observation that the NPS "has more limited authority to influence activities outside parks . . . ."¹¹⁷ However, the fundamental concern about this aspect of the NPS' Management Policies draft lies in the artificial distinction it draws between the detailed policies framed to control impairments from "in-park" activities and the limited single statement asserting that the prohibition of impairments applies to "external" activities.

Unfortunately, in asserting that the impairment prohibition "applies to threats . . . from outside parks as well as from within parks" the draft offers no hint that the proposed standards applicable to the NPS' own in-park activities might also be applicable in assessing park impairments caused by activities occurring outside park boundaries. Moreover, that failure is exacerbated by the proposed definition of "impairment of park resources and values," which unnecessarily compromises any application of the concept to external threats by expressly limiting it to impairments resulting from internal activities. The definition expressly confines the term to those impairments that "may occur from visitor activities, NPS activities in managing a park, or activities undertaken by concessioners, contractors, and others operating in a park."¹¹⁸

The latter provision should be substantially revised to make clear that the standards for determining impairment apply generally to all impacts from any sources, including external sources, and not solely to the internal activities listed. Currently, of course, available legal authorities remain somewhat uncertain about just how extensively the impairment prohibition applies to external activities that cause impairments within a park. But there is no reason for the NPS to retreat from setting a standard at least as rigorous as it expects from itself in protecting the parks. Only if the NPS sets a rigorous standard for assessing all impairments can it ever hope to extend its presently uncertain authority to deal effectively with externally imposed impairments.

Conclusion

The converse of the above proposition is also true. It is critical for the NPS to recognize that its policies regarding impairments caused by activities approved within the parks will almost certainly also set the bottom line for all protection that may ultimately be established to address impairments from external activities.

For this reason, there is a great deal for advocates of park protection to cheer in the proposed draft of the new NPS Management Policies. If applied straightforwardly with a minimum of politically driven compromises, the policies should generate a new regime of more reliable protection against impairments generated by developments and uses within the parks. By the same token, however, if the NPS yields in the adoption or application of these new policies to the inevitable political demands for a freer "discretionary" hand to "balance" resource protection against the tourism goals of local promoters, damage to the future of our parks will come not just from the occasional concessions to internal park developments. Policies that permit continued compromise of the NPS' own protective obligations are also virtually certain to invite qualifications or limits that will compromise efforts to address external threats. In short, if the NPS does not set and enforce high standards for control of activities it permits within the parks, it is difficult to imagine any significant success in controlling the increasing threat from activities outside the parks. For this among other reasons, it is especially important to ensure that the standard established for in-park activities is as rigorous as the dictionary definitions of "impairment" permit.

1. The National Park Service Organic Act of August 25, 1916, 39 Stat. 535, 16 U.S.C.A. § 1 (Supp. 2000).

2. 16 U.S.C. § 1a-1 (1995) (Pub. L. No. 95-250, Title 1, § 101(b), Mar. 27, 1978, 92 Stat. 166).

3. WILLIAM J. LOCKHART, EXTERNAL PARK THREATS AND INTERIOR'S LIMITS: THE NEED FOR AN INDEPENDENT NATIONAL PARK SERVICE IN OUR COMMON LANDS 3-72 (National Parks & Conservation Ass'n/Island Press 1988).

4. S. REP. No. 95-528, at 13-14 (1977) (emphasis added).

5. Id. at 13-14 and 7-8 (emphasis added).

6. LOCKHART, supra note 3, at 25-30, 36-38.

7. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984); but see Christensen v. Harris County, 120 S. Ct. 1655 (2000).

8. William J. Lockhart, External Threats to Our National Parks: An Argument for Substantive Protection, 16 STAN. ENVTL. L.J. 3 (1997). See also cases cited supra note 7. For a contra position, arguing that the Act is directed solely to the internal management of the parks by the Secretary of the Interior see George Cameron Coggins, Protecting the Wildlife Resources of National Parks From External Threats, 22 LAND & WATER L. REV. 1 (1987). Of course, activities conducted under the authority of other statutory regimes will raise questions about the primacy of those activities over protection. But that problem is addressed by the 1978 Redwoods Amendments to the Organic Act in terms that suggest that any conflicting claim must find express statutory authority. After reemphasizing the intended rigor of the Organic Act by further prohibiting any "derogation of the values and purposes" of the parks, the Redwoods Amendments permit any conflicting derogation only under a clause reading "except as may have been or shall be directly and specifically provided by Congress," 16 U.S.C. § 1a-1, thus giving default primacy to park protection in the absence of express statutory exceptions.

9. See Opinion of Solicitor John Leshy, U.S. DOI, Options Regarding Applications for Hardrock Mineral Prospecting Permits on Acquired Lands Near a Unit of the National Park System (Apr. 16, 1998) (based particularly on the intent to enhance Organic Act protection in enactment of the Redwoods Amendments). A further unresolved problem is whether the no-impairment provision applies to impacts from all external activities, from only federal agency activities, or only from those federal activities within the authority of the Secretary of the Interior. Although not specifically addressed, the above Solicitor's opinion may have relied on the latter position. See id. at 22, 23 ("the text of the 1978 Amendment and . . . other legal considerations . . . support the conclusion that the Organic Act as amended in 1978 does have application to the Secretary's exercise of his authorities over activities taking place outside the boundaries of park units"). (Emphasis added.)

10. Because the only textual qualification of the Organic Act's general prohibition against park impairment is found in the NPS' mandate to "provide for" visitors' "enjoyment" of park resources, it can be argued that other activities lacking that statutory support may be more rigorously regulated under the Act. These activities may include external activities initiated by other agencies, as well as certain activities initiated by the NPS, if they are not undertaken to provide for visitors' enjoyment. Indeed, on this thesis, impacts from external sources, as well as NPS activities that do not contribute to visitor "enjoyment" must be more rigorously controlled. Thus, while no direct precedents so hold, there are good reasons to believe that the extent of adverse impacts permitted within the parks may delimit the standard that will also govern the extent of permissible impacts that may result from external activities.

11. 7 F. Supp. 2d 1205 (D. Utah 1998).

12. 1988 Management Policies is the currently effective version of the document, which followed and significantly expanded on the 1978 and earlier versions.

13. See Notice of Availability of Draft National Park Service Management Policies, 65 Fed. Reg. 2984 (Jan. 19, 2000) (estimated date of final revision based on informal advice from NPS officials).

14. See U.S. NPS, Personal Watercraft Use Within the NPS System, 65 Fed. Reg. 15077 (Mar. 21, 2000) (prohibiting use of personal watercraft, subject to defined exceptions). See also U.S. DOI, National Park Service Puts the Brakes on Escalating Snowmobile Use in the National Park System (Apr. 27, 2000) (press release) (quoting Donald J. Barry, Assistant Secretary of the Interior for Fish and Wildlife and Parks, announcing decision to begin enforcing existing NPS regulations limiting use of snowmobiles).

15. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED (G.&C., Merriam Co. 1976). See also THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, SECOND COLLEGE EDITION 644 (Houghton, Mifflin 1985) ("to diminish in strength, value, quantity or quality").

16. Id.

17. "Derogate" is defined by WEBSTER'S, supra note 15, at 608-09, as "to make to seem inferior; lower in esteem"; "to place something at a disadvantage or in disesteem esp. by taking part of it away"; or (archaic) "to take away (a part or quality of something) so as to do injury to the whole." The AMERICAN HERITAGE COLLEGE EDITION, supra note 15, at 356, defines derogate as "to detract; take away"; or "to deviate from a standard or expectation."

18. Traditional forms of legislative history offer little insight into the meaning or level of protection intended by this provision. But Yale emeritus historian Robin W. Winks finds considerable contemporaneous evidence that the key figures in drafting the Act intended a very high level of protection. See Robin W. Winks, The National Park Service Act of 1916: "A Contradictory Mandate"?, 74 DENV. U. L. REV. 575 (1997).

19. See, e.g., John Lemons & Dean Stout, A Reinterpretation of National Park Legislation, 15 ENVTL. L. 41 (1984): Dennis J. Herman, Loving Them to Death: Legal Controls on the Type and Scale of Development in the National Parks, 11 STAN. ENVTL. L.J. 3 (1992); Kamron Keele, Preservation and Use: Road Building, Overcrowding, and the Future of Our National Parks, 11 TUL. ENVTL. L.J. 441 (1998); S. Capin, If You Build It They Will Come: Concession Reform in the National Parks, 33 LAND & WATER L. REV. 33 (1998); Richard J. Ansson Jr., Our National Parks—Overcrowded, Underfunded, and Besieged With a Myriad of Vexing Problems; How Can We Best Fund Our Imperiled National Park System?, 14 J. LAND USE & ENVTL. L. 1 (1998).

20. U.S. Memorandum (1) In Opposition to Plaintiffs Motion for Summary Judgment and (2) In Support of U.S. Cross-Motion for Summary Judgment in Southern Utah Wilderness Alliance v. Dabney & Utah Trail Machine Ass'n et al., at 57-58 (United States District Court, District of Utah, Civ. No. 2:95CV 0559B) (quoting Declaration of Walt Dabney, Superintendent, Canyonlands National Park) (hereinafter U.S. Summary Judgment Memorandum).

21. "Under plaintiff's analysis, the organic acts would prohibit the creation or maintenance of foot trails as well as most hiking and camping in the Salt Creek area or any other area . . . that contains desert soils." Id. at 57.

22. Brief for the Federal Appellees in Southern Utah Wilderness Alliance v. Dabney, at 17 n.5 (No. 98-4204, U.S. Court of Appeals for the Tenth Circuit).

23. "The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid giving the unintended breadth to the Acts of Congress." Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961). "It is axiomatic that we must construe statutes so as to give meaning to all terms, and simultaneously to avoid interpretations that create internal inconsistencies or contradictions." In re McBryde, 120 F.3d 519 (5th Cir. 1997); see also Bailey v. United States, 516 U.S. 137, 145 (1995) ("We read [the statute] with the assumption that Congress intended each of its terms to have meaning. Judges should hesitate . . . to treat [as surplusage] statutory terms in any setting.").

24. See discussion of the NPS 1988 Management Policies document infra notes 51-59 and accompanying text.

25. RICHARD WEST SELLARS, PRESERVING NATURE IN THE NATIONAL PARKS 282-84 (Yale Univ. Press 1997), discussed infra note 43 and accompanying text.

26. U.S. Summary Judgment Memorandum, supra note 20, at 56 (quoting declaration of Superintendent Walt Dabney.)

27. Id. at 57 (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984)).

28. Id. at 58.

29. If the statute were interpreted to leave the NPS free merely to "balance" the competing considerations without a controlling standard, the balancing judgments would be reversible only for action that is arbitrary, capricious, or an abuse of discretion, typically reviewed under less-than-rigorous requirements like those suggested above. See 5 U.S.C. § 706(2)(A), available in ELR STAT. ADMIN. PROC.; Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 19 ELR 20749 (1989); Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 13 ELR 20544 (1983).

30. Southern Utah Wilderness Alliance v. Dabney, 7 F. Supp. 2d 1205, 1211 (D. Utah 1998).

31. U.S. NPS, 1988 Management Policies, supra note 12, at Ch. 1:4.

32. See supra note 5 and accompanying text.

33. See, e.g., Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir. 1996); National Rifle Ass'n v. Potter, 628 F. Supp. 903 (D.D.C. 1986); Wilkenson v. Department of the Interior, 634 F. Supp. 1265 (D. Colo. 1986); Robbins v. United States, 284 F. 39 (8th Cir. 1922).

34. In addition to the Yosemite case of Sierra Club v. Babbitt, discussed infra notes 41-42 and accompanying text, see National Wildlife Fed'n v. National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987). Rejecting a challenge to a Yellowstone management plan claimed to damage wildlife (grizzlies) in violation of the Organic Act, the court upheld the plan on the following reasoning:

While the Park Service is clearly responsible for the preservation of grizzly bears, it is also charged with "promoting" and "providing for the enjoyment" of park resources. The adoption of the Interim Management Plan and the entire process that preceded its adoption demonstrate that the Park Service attaches great importance to its duties as set forth in the Organic Act. It seeks a balance between preservation and promotion that appears to have been quite successful in the first year of operation under the Interim Management Plan.

Id. at 390-91. The opinion illustrates judicial reliance on inapposite cases that recognize broad agency discretion only in sustaining NPS decisions that impose restrictions on use or development in order to protect park resources. Thus, in rejecting claims that Yellowstone's management plan would damage park wildlife, the court relied on two cases that had emphasized the NPS' "very broad" authority as the basis for upholding NPS regulation of state highways through parks. [Wilkenson, 634 F. Supp. at 1265 and Robbins, 284 F. at 39]. Some similarly inapposite cases also emphasize NPS discretion in ruling on application of the "discretionary function" exception to the Federal Tort Claims Act. See especially Childers v. United States, 841 F. Supp. 1001, 1018 (D. Mont. 1993) ("The necessity to exercise judgment or choice and the policy considerations employed arise out of the provisions of 16 U.S.C. § 1, which require the NPS to balance the extent to which it will emphasize preservation, public use, or visitor safety at each national park."). If these cases involve impairment policy at all, it is only because the NPS has pursued that policy by declining to provide more elaborate protective facilities or arrangements.

35. Sierra Club v. Department of the Interior, 376 F. Supp. 90, 4 ELR 20444 (N.D. Cal. 1974); Sierra Club v. Department of the Interior, 398 F. Supp. 284, 5 ELR 20514 (N.D. Cal. 1975) (both enforcing Secretary's duty under the Organic Act to act to protect Redwoods National Park from threats originating on adjacent land.) See also Sierra Club v. Andrus, 487 F. Supp. 443, 10 ELR 20555 (D.D.C. 1980). In Andrus, the court acknowledged that the Secretary had a mandatory legal obligation to protect park's reserved water rights, but refused to compel the Secretary to initiate legal action to quantify those rights because it recognized the Secretary's discretion to choose among protective strategies. At the same time, however, the Court emphasized that "it seems clear that in the event of a real and immediate water supply threat to the scenic, natural, historic or biotic resource values of the Glen Canyon National Recreation Area or the Grand Canyon National Park, the Secretary must take appropriate action" because "'the Secretary has an absolute duty, which is not to be compromised, to fulfill the mandate of the 1916 Act to take whatever actions and seek whatever relief as will safeguard the units of the National Park System.'" Id. at 448, 10 ELR at 20557 (quoting from S. REP. No. 95-528 (1977)). Similarly, see Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir. 1996), where the court recognized the NPS' broad protective discretion in sustaining regulations that restricted the use of bicycles in Golden Gate National Recreation Area. At the same time, however, the Ninth Circuit also made clear that the Organic Act sets limits on NPS discretion to allow those activities. Emphasizing that Congress "clearly intended" to make "resource protection the overarching concern," the court gave the Act real substantive bite, holding that "in light of this mandate, NPS had no choice" but to amend its trail regulations to impose the same protective standards applicable in natural parks. Id. at 1452, 1453 (emphasis added). Cf. National Parks & Conservation Ass'n v. Federal Aviation Comm'n, 998 F.2d 1523, 1532 (10th Cir. 1993) (in determining whether airport noise constituted "use" of national park unit, the Federal Aviation Administration must assess "significance" of noise impacts on visitors' recreational experience based on empirical evidence).

36. Advocacy groups' arguments regarding specific issues of development or use, including those offered by this author, have tended merely to emphasize factors thought to show unacceptable "impairment," but seldom suggest solutions for the NPS' difficult interpretive problem. More comprehensive advocacy generally focuses on more general systemic consequences of excessive development or use in the parks, effectively pointing up the accumulating evidence of impairment and/or the need to redirect administration and funding to provide more effective protection. But these studies also tend to assume that their policy proposals are supported by the no-impairment provision, and thus fail to address the crucial interpretive problems lying at the legal headwaters for policy innovation. See, e.g., NATURAL RESOURCES DEFENSE COUNCIL & NATIONAL TRUST FOR HISTORIC PRESERVATION, RECLAIMING OUR HERITAGE: WHAT WE NEED TO DO TO PRESERVE AMERICA'S NATIONAL PARKS 2 (1997). See also NATIONAL PARKS AND CONVERSATION ASS'N, PARK POLICY AGENDA, RECOMMENDATIONS FOR THE ADMINISTRATION AND CONGRESS 1999-2000 13 (undated) (bare mention that "the mission of the Park Service is to conserve unimpaired the natural and cultural resources of the nation's parklands.").

Similarly, scholarship on this problem frequently points up the difficulties inherent in the "dual mandate," but has largely failed to suggest interpretive solutions, focusing instead on regulatory strategies that the NPS "could" undertake when motivated by preservation goals. See, e.g., Nathan L. Scheg, Preservationists vs. Recreationists in Our National Parks, 5 HASTINGS W.-NW. J. OF ENVTL. L. & POL'Y 47 (1998) (suggesting strategies such as "to apportion use of the parks" between user groups); Herman, supra note 19, at 31-33 (1992)(emphasizing the dominance of the preservation mandate and suggesting that it could be properly effected by focusing on "whether there exists a logical connection between the proposed use and the purposes which the park was created to serve.").

37. See Canyonlands National Park and Orange Cliffs Unit of Glen Canyon National Recreation Area Environmental Assessment for Backcountry Management Plan, at 36, 55, 56 and Appellee Appendix in Dabney, at 82, 96, 97, 152-54, 158-61, 173, 176, 200, 201, 210, 215, 219 (administrative record).

38. 7 F. Supp. 2d 1205, 1211 (D. Utah 1998). The court further explained that "the Park Service's mandate is to permit forms of enjoyment and access that are consistent with preservation and inconsistent with significant permanent impairment." Id. (Emphasis added.)

39. See Sierra Club v. Department of the Interior, supra note 35 and accompanying text.

40. See discussion infra notes 69-71 and accompanying text.

41. Sierra Club v. Babbitt, 69 F. Supp. 2d 1202 (E.D. Cal. 1999). In support of its view of the Act, the court cited Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir. 1996), where broad NPS discretion was pertinent only in support of NPS exercise of authority to impose protective regulations. See supra note 35.

42. Id. at 1247.

43. SELLARS, supra note 25, at 282.

44. From 1978-1998, the NPS reports that total visitation to units of the National Park System increased 50.6% from 190,390,600 to 286,739,115. U.S. NPS, VISITATION DATA TO UNITS OF THE NATIONAL PARK SERVICE, DECADE REPORTS (in table format at http://www2.nature.nps.gov/stats/dec9199.htm) (calculated from tables for 1971-1980 and for 1991-1998) (site visited June 15, 2000). The challenge in these overall figures, however, pales when one considers the implications of the increases at pristine natural parks, such as Canyonlands National Park in Utah, where visitation increased from 85,932 in 1978 to 436,524 in 1998, a whopping 407%. And even (mischaracterized) "windshield" parks such as Arches and Zion National Parks, already popular destinations in 1978, had increased by 1998 by 156% and 98% respectively. (Arches from 326,948 to 510,213; Zion from 1,193,212 to 2,370,048.)

45. List taken from discussion by NPS superintendents participating in an NPS training course on "Natural Resource Protection Law and Policy for Superintendents" conducted May 24-27, 1999, in Salt Lake City. One participant from Death Valley National Park advised that the park had currently been grappling with the need to control the use of sand-skis and sand-boards on park sand dunes because they disrupt the sensitive dune ecosystems.

46. Winks, supra note 18.

47. Id. at 597. Winks elaborated: "But what of 'shall promote and regulate' . . . . Here arises the true source of the dichotomy of purpose, between preservation and use, conservation and enjoyment." Id. at 612.

48. Public availability of a draft revision, discussed infra at notes 86-107 and accompanying text, was announced at 63 Fed. Reg. 40736 (July 30, 1998).

49. 1988 Management Policies, ch. 1, at 1:3, U.S National Park Service, U.S. Department of the Interior (1988).

50. Id. at 1:3, 1.4.

51. Id. at 2.8, 4:2. (Emphasis added.)

52. Id. at 2.7, 4.1, 4.2.

53. Id. at 2.7. (Emphasis added.)

54. The same paragraph nods in the direction of the statutory requirement to establish "carrying capacity" limitations by providing that "visitor use management plans will contain specific, measurable management objectives related to the activity or activities being addressed." Id. ch. 8, at 8:2 (second full paragraph).

55. Id.

56. Id. ch. 9, at 9:1, 9:2.

57. Id. at 9:8.

58. Id. at 9:9.

59. Id. at 9:11. Similar ambivalence was reflected in the predecessor to the 1988 Management Policies document—a 1975 edition—which recognized the need for decisions with regard to a wide range of visitor facilities, while offering rigorous-sounding but conclusory advice that provided little helpful guidance in resolving the inevitable conflicts. With regard to "Development" in the parks, for example, the primary policy statement began with a heading to the effect that "The National Park Service Will Provide Approved Development Necessary for the Enjoyment, Resource Protection, and Management of the Parks," which, apart from required adherence to approved plans, policies and management objectives, required only that "facilities and their location, design and materials will be consistent with the perpetuation and protection of the resources of the parks." 1975 Management Policies, at III-1.

60. U.S. NPS, CANYONLANDS NATIONAL PARK AND ORANGE CLIFFS UNIT OF GLEN CANYON NATIONAL RECREATION AREA ENVIRONMENTAL ASSESSMENT FOR BACKCOUNTRY MANAGEMENT PLAN 36 (Dec. 1993). See also the NPS' supporting Administrative Record, supra note 37.

61. Letter dated Feb. 8, 1994, to Mr. Walt Dabney, Superintendent, Canyonlands National Park from James V. Hansen, Member of Congress, in Administrative Record for Backcountry Management Plan, supra note 37.

62. See Jim Woolf, Canyonlands Boss Has a Not-So-Wild Idea: Bigger May Be Better: The Land That Parks Forgot, SALT LAKE TRIB., Feb. 26, 1995; P. Mueller, What's to Become of Canyonlands?; Plans Would Double Park Size, Limit Off-Road-Vehicle Use; Canyonlands: Will Its Size Be Doubled?, SALT LAKE TRIB., July 10, 1997 (available at http://www.tribaccess.com/cgi-bin/om_isapi.dll?) (visited July 4, 2000).

63. Finding of No Significant Impact, Final 1994 Canyonlands National Park and Orange Cliffs Unit of Glen Canyon National Recreation Area Backcountry Management Plan. Canyonlands National Park, at 28, executed Jan. 10, 1995 by Walter D. Dabney, Superintendent, Southeast Utah Group, National Park Service.

64. U.S. Memorandum (1) In Opposition to Plaintiffs Motion for Summary Judgment and (2) In Support of United States' Cross-Motion for Summary Judgment at 54, 56, in Southern Utah Wilderness Alliance v. Dabney & Utah Trail Machine Ass'n et al., United States District Court, District of Utah, Civ. No. 2:95CV0559B (citing Declaration of Walt Dabney, Superintendent, Canyonlands National Park). (Emphasis added.)

65. Id. at 63.

66. The Redwoods National Park cases also held that the NPS had unlawfully failed to comply with its Organic Act duty of protection. But Dabney held that the NPS own management decision would result in prohibited impairment, while the Redwoods decisions merely held that the Secretary's inaction had violated his duty to protect the park. See cases cited supra note 35.

67. 467 U.S. 837, 14 ELR 20507 (1984).

68. 7 F. Supp. 2d 1205, 1211 (D. Utah 1998) (emphasis added).

69. Id. at 1212 (emphasis added).

70. Id.

71. Id. at 1211-12.

72. Brief for the Federal Appellees in Southern Utah Wilderness Alliance v. Dabney, United States Court of Appeals for the Tenth Circuit, at 10 (No. 98-4204, United States Court of Appeals for the Tenth Circuit).

73. Id. at 5

74. Id. at 4-5.

75. Id. at 17 (emphasis added).

76. Id. at 4, 5.

77. The NPS explicitly acknowledged this constraint in later transmitting a revised policy statement to the U.S. Department of Justice (DOJ) for submission to the court of appeals. See infra notes 86-107 and accompanying text. The NPS' transmittal letter acknowledged that the district court held the Organic Act "on its face prohibits NPS from 'permanently impairing unique park resources.'" It went on to state the NPS' agreement "that the Organic Act does place limitations on the discretion that park managers may exercise with respect to park protection and visitor use," although it did "not think that the district court properly framed the limits of that discretion." Letter dated Jan. 13, 2000, from Renee Stone, Associate Solicitor, U.S. DOI. to James C. Kilbourne, Chief, Appellate Section, Environment and Natural Resources Division, U.S. Department of Justice. (Emphasis added.)

78. Brief for the Federal Appellees, supra note 72, at 13.

79. Letter dated Sept. 3, 1999, to Robert Stanton, Director, U.S. NPS, from Thomas C. Kiernan, President, National Parks & Conservation Ass'n, and Charles M. Clusen, Senior Policy Analyst, Natural Resources Defense Council. The letter also went to the Assistant Secretary of the Interior for Fish & Wildlife and Parks, as well as virtually the entire senior leadership of the NPS.

80. Indeed, use of "essential" as a qualifier in the NPS' position statement is subject to exactly the same criticism that the NPS offered in the same brief with regard to the trial court's phrasing that applied the impairment standard to protect only "unique" park resources: "While the court's standard precludes the permanent impairment of "unique" park resources, the term "unique" has no basis in the Organic Act." Brief for the Federal Appellees, supra note 72, at 19.

81. See discussion of the NPS draft Management Policies, infra notes 86-107 and accompanying text. Speculation suggests that the language may actually have been thought to broaden protection. The drafters, like the district judge in Dabney, may have focused on the types of resources at stake in that case, further influenced by their own broad personal perception that a full range of park-managed resources are "essential" in the parks, without considering the much more limiting interpretation to which their language was susceptible.

82. Brief for the Federal Appellees, supra note 72, at 10; see also id. at 11, 16, 21, 22-23.

83. 16 U.S.C. § 1c(b).

84. Brief for the Federal Appellees, supra note 72, at 24.

85. Id. at 24. See similar but expanded guidance in the new draft Management Policies, infra notes 101-107 and accompanying text.

86. The draft Management Policies document was submitted to the DOI, for further transmittal to the court, under cover of a forwarding letter which explained that:

for over a year the NPS has also been engaged in an internal review of its Policies, concluding that the policies need to address the scope of agency discretion. . . . NPS staff, managers and leadership considered more fully . . . the implications of the lower court decision as well as the language in the government's brief.

Letter dated Jan. 13, 2000, from Renee Stone, Associate Solicitor, U.S. DOI, to James C. Kilbourne, Chief, Appellate Section, Environment and Natural Resources Division, U.S. Department of Justice (Jan. 13, 2000).

87. Letter dated Jan. 13, 2000, from John T. Stahr, Appellate Section, Environment and Natural Resources Division, U.S. Department of Justice, to Clerk, U.S. Court of Appeals, Tenth Circuit, advised the court that a notice of availability of the draft Management Policies would be published in the Federal Register. The letter submitted copies of the draft to the court, and the Federal Register notice of availability of the draft was published Jan. 19, 2000, the same date the scheduled oral argument in Dabney was conducted.

88. Transmittal letter, supra note 86, at 2.

89. Draft of U.S. NPS, U.S. DOI, 2000 Management Policies. To Guide the Management of the National Park System § 1:4:1 (Notice of Availability at 65 Fed. Reg. 2984, Jan. 19, 2000) (hereinafter Draft Management Policies).

90. See discussion infra note 114 and accompanying text.

91. Draft Management Policies, supra note 89, § 1:4:6, ch. 1, p. 1:6 (emphasis added).

92. Id. § 1:4:7, ch. 1, p. 1:6.

93. Id.

94. See infra note 105 and para. 3 in accompanying text.

95. Draft Management Policies, supra note 89, § 1:4:2, ch. 1, p. 1:4 (Definition section: definition of "impairment of park resources and values.").

96. Id. § 1:4:2 (definition of "Park resources and values.").

97. Id. (emphasis added).

98. See discussion supra notes 82-84 and accompanying text.

99. Draft Management Policies, supra note 89, § 1.4.2, ch. 1, p. 1:4. The "supplementation" and "clarification" by the General Authorities Act has reference to the 1970 General Authorities Act, which made the protections of the Organic Act "applicable to all areas within the national park system" and specifically declared all national park units to be part of the "national park system." In addition, each park unit was also to be administered in accordance with "any statute made specifically applicable to that area." 16 U.S.C. § 1c; Act of Aug. 18, 1970, Pub. L. No. 91-383, § 2(b), 84 Stat. 826.

100. The intended inclusiveness of the "essential park resources and values" is also emphasized by a further provision of the same definition which explains that the limited category or resources and values not protected by the Organic Act consists of

any attributes of a park whose conservation is not essential to the purposes for which a park was included in the national park system. For example, the term does not include non-native species or man-made structures that are not historic or prehistoric, unless their conservation is essential to a specific additional purpose for which an individual park was established.

Draft Management Policies, supra note 89, § 1.4.2, p. 1:5. Despite the foregoing, some priority for resources named in park enabling legislation might be inferred from the further guidance suggesting that impairment is more likely where adverse impacts affect such resources. But the effect of that preference, if any, is simultaneously muted by an accompanying provision making clear that "an impact to any park resource or value may constitute impairment. See infra note 102 and accompanying text.

101. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

102. Draft Management Policies, supra note 89, § 1.4.9, ch. 1, p. 1:6.

103. Id. § 1.4.9, sbpt. 1, ch.1, p. 1:6.

104. Id. § 1.4.9, sbpt. 2, ch.1, p. 1:7.

105. Id. § 1.4.9, sbpt. 3, ch.1, p. 1:7.

106. Id. § 1.4.9, sbpt. 4, ch.1, p. 1:7.

107. Id. § 1.4.9, sbpt. 5, ch.1, p. 1:7.

108. Id. § 1.4.9, ch. 1, p. 1:7.

109. 7 F. Supp. 2d at 1212.

110. Brief for the Federal Appellees, supra note 72, at 26.

111. Id. at 27.

112. See, e.g., Proposed Rules, Personal Watercraft Use Within the NPS System, 63 Fed. Reg. 49312 (Sept. 15, 1998).

113. See the Draft Management Policies, supra note 89, §§ 8.1, 8.2, ch. 8, pp. 8:1-8:3.

114. Id. § 1.4.2, ch. 1, p. 1:4.

115. See discussion, sources and cases cited supra notes 6-9 and accompanying text.

116. Draft Management Policies, supra note 89, § 1.4.11, ch.1, p. 1:7.

117. Id.

118. Id.